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COMMONWEALTH v. ETZEL (04/14/52)

April 14, 1952

COMMONWEALTH
v.
ETZEL, APPELLANT



Appeal, No. 72, March T., 1952, from order of Court of Common Pleas of Butler County, December T., 1951, No. MSD 10, in case of Commonwealth of Pennsylvania v. Regis Etzel. Order reversed.

COUNSEL

Lee C. McCandless, for appellant, submitted a brief.

No appearance was made nor brief submitted for Commonwealth.

Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 370 Pa. Page 254]

OPINION BY MR. JUSTICE JONES

The defendant, while operating his automobile on a highway in Butler County, met with an accident which resulted in fatal injury to his passenger. After a citation and hearing, as provided by Section 615 (b) 4 of The Vehicle Code of 1929, P.L. 905, as amended, 75 PS § 192 (b) 4, the Secretary of Revenue suspended the defendant's operator's license for a period of three

[ 370 Pa. Page 255]

    months. The defendant appealed the order of suspension to the court below (Common Pleas of Butler County) which entered upon a hearing of the matter as required by Section 616 of The Vehicle Code, as amended, 75 PS § 193. At the hearing (intended to be de novo: see Commonwealth v. Garman, 361 Pa. 643, 645, 66 A.2d 271, and cases there cited), the Commonwealth produced but one witness, a State policeman. He had not witnessed the accident and testified in part from a written report made by another officer with whom he had investigated the accident shortly after the happening. At an adjourned hearing, counsel for the Commonwealth offered in evidence, and the court admitted over the defendant's objection, a letter from the office of the Secretary of Revenue setting forth several prior violations of The Vehicle Code by the defendant and two suspensions of the defendant's license, respectively, four and six years before. On the assigned basis of "the facts" in the case and the allegations of the letter, the court entered an order dismissing the appeal.

There being neither express statutory provision for nor prohibition of an appeal from such an order, the matter is now before us as on certiorari: Bureau of Highway Safety v. Wright, 355 Pa. 307, 309, 49 A.2d 783. Our review is therefore limited to determining whether the findings of the court below are supported by competent evidence and to correcting any conclusions of law erroneously made: Commonwealth v. Herzog, 359 Pa. 641, 60 A.2d 37, and cases there cited.

The defendant contends (1) that there was no evidence from which it could be found that the fatal accident was due to negligence on his part, (2) that the hearing judge erred in receiving in evidence the letter from the office of the Secretary of Revenue and (3) that the court could not properly make an order upholding the suspension without a finding of fact that

[ 370 Pa. Page 256]

    the accident resulted from negligence of the defendant. We agree ...


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